RESTAPP TERMS AND CONDITIONS
Last Updated: November 24, 2018
This terms and conditions (“Conditions“) is a legal agreement between RestApp UK Limited (“RestApp“) and individual or legal entity (“Client“) using or accessing the RestApp product whether in connection with a paid subscription or a free trial. Please read these Conditions carefully before agreeing. By agreeing to these Terms and Conditions or using the RestApp product, whichever occurs earlier, customer is agreeing to be bound by these terms.
1. Subscription to RestApp Service
Client hereby agrees to license the RestApp service(s) (each a “Service”) identified on the web form in the case of a Service trial or in the subscription documentation (i.e., the quote or invoice) (the “Subscription”) exchanged by the parties in conjunction with Client’s acceptance of this Conditions. The specific Services and the fees payable with respect to such Services are set forth in the Subscription. Each Service may include updates, cloud-based services, support services, softwares, applications or documentations, each of which is subject to the terms of this Conditions as applicable. RestApp may add to, change or discontinue any component of the Services at any time; provided however, that no such change shall materially increase Client’s obligations or materially decrease Client’s entitlements under this Conditions. Client is responsible for all actions taken under its RestApp account credentials, regardless of whether such actions are taken by Client, its employees or a third party. RestApp is not liable for any loss or damage arising from any unauthorized use of Client’s account.
2. Grant of License
During the Term (as defined below), RestApp grants Client a limited, non-exclusive, non- transferable, non-sublicensable, revocable license to use, and, in the case of RestApp Services that permit additional Users (as set forth in the Service specific terms below), to allow such Users to use, the Services on the terms set forth in this Conditions. Client agrees that all rights, title and interest in and to all the intellectual property rights in the Services, and all modifications, extensions, scripts and other derivative works of the Services provided or developed by RestApp are owned exclusively by RestApp or its licensors. All rights not granted to Client in this Conditions are reserved by RestApp.
3. License Restrictions
Client and any Users shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Services, by any means whatsoever; (b) distribute viruses or other harmful or malicious computer code via or into the Services; (c) engage in any conduct that disrupts or impedes a third party’s use and enjoyment of the Services; (d) remove any Service identification, copyright or other notices from the Services; (e) sell, lease, lend, assign, sublicense, grant access or otherwise transfer or disclose the Services in whole or in part, to any third party; (f) use the Services for timesharing, service bureau or hosting purposes or otherwise use, resell, sublicense, distribute or transfer or allow others to use the Services to or for the benefit of third parties; (g) modify or incorporate into or with other software or create a derivative work of any part of the Services;
(h) use the output or other information generated by the Services for any purpose other than as contemplated by this Conditions; (i) use the Services for any use other than Client’s internal business use; (j) use unauthorized modified versions of the Services, including without limitation, for the purpose of building a similar or competitive Service or service or for the purpose of obtaining unauthorized access to the Service; or (k) use the Services in any way that is contrary to applicable local, state/provincial, federal and foreign laws, including without limitation those relating to privacy, data protection, electronic communications and anti-spam legislation. RestApp retains all title to, and, except as expressly licensed herein, all rights to the Services, all copies, derivatives and improvements thereof and all related documentation and materials.
Initial Term shall mean the number of months in the term as noticed in the Subscription beginning on the date specified in the Subscription (“Beginning Date“). Upon expiration of the Initial Term and unless otherwise stated in the Subscription, this agreement (Conditions) will automatically renew on a yearly basis (each a “Renewal Term”, and the Initial Term and all Renewal Terms collectively, the “Term“) until terminated by Client or RestApp by delivery of written notice to the other party at least thirty days prior to the end of the Initial Term or then-current Renewal Term, as applicable. In the case of Services licensed on a trial basis, the Term of this agreement (Conditions) shall be limited to the duration of the trial period identified in the Subscription. Except as specified in Section 12.1 below, Client may not terminate these Conditions prior to the expiration of the Initial Term. Following expiration of the Initial Term, RestApp may increase the fees payable by Client under this Conditions, upon not less than 30 days’ written notice.
5. Fees and Payment
Client shall pay RestApp the annual and/or monthly fees (“Fees”) specified in the Subscription, in accordance with the timing and currency specified in the Subscription. All payments by Client to RestApp under these Conditions are non-refundable, and made via the automatic payment method specified by Client in the Subscription, or as otherwise agreed by the parties. Client shall undertake any additional actions reasonably requested by RestApp to implement the foregoing automated fee payment process. Any amounts past due from Client under these Conditions shall accrue interest at a rate which is the lesser of eighteen percent per annum or, if less, the maximum rate allowable by law. Any applicable federal, state, provincial, or other goods and services or sales taxes will be added to fees owing pursuant to these Conditions. RestApp may at any time during any Renewal Term increase fees to the then-current list price upon 30 days’ prior notice.
6. Classified Information
RestApp and Client (and its Users) shall each retain in confidence all information received from the other party pursuant to or in connection with these Conditions that the disclosing party identifies as being proprietary and/or classified or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or classified (“Classified Information“), and will make no use of such Classified Information except as necessary to fulfill their respective obligations under the terms and during the term of these Conditions. Each party shall treat these terms and conditions as classified; however, either party may disclose such information in confidence to its immediate legal and financial consultants as required in the ordinary course of that party’s business. Notwithstanding the foregoing, the restrictions set forth above will not apply to (a) information previously known to the receiving party without reference to the disclosing party’s Classified Information, (b) information which is or becomes publicly known through no wrongful act of the receiving party,
(c) information that is independently developed by either of the parties, or (d) information required to be disclosed pursuant to applicable law. The foregoing shall also not prevent RestApp from using Client’s name and/or trademark(s) in its marketing and training materials or Client data on an aggregate, anonymized basis.
7. Client’s Representations and Indemnification
Client represents and warrants that currently and throughout the Term (a) it is fully authorized to enter into these Conditions and that Client and any Users are fully authorized to utilize the Services, (b) Client and any Users are and will remain in compliance with all applicable laws and regulations with respect to its and their activities related to these Conditions, including but not limited to privacy laws; and (c) if Client or any of its Users imports lists into the Services for the purpose of sending electronic communications (e.g., emails, texts) to such list, or otherwise collects electronic addresses for the purpose of sending electronics messages, then Client warrants that each person on such list has previously opted-in to receive promotional electronic communications from Client and that the content of such communications by Client will comply with applicable laws and regulations. Client shall indemnify, defend and hold harmless RestApp and its officers, employees, agents and affiliates from and against all losses, expenses, liabilities, damages and costs including, without limitation, reasonable attorneys’ fees (collectively “Costs”), to the extent that such Costs are attributable to any breach by Client or any User, employee, independent contractor, or affiliate thereof, of any representations, warranties or other obligations set forth in these Conditions. Client and each of its Users agree to comply with all RestApp policies and all laws, rules and regulations relating to the use of the Services. Any violation of this section may result in loss of features, up to and including termination of Client’s account. Client will indemnify RestApp for any costs, fines or damages incurred by RestApp due to Client’s or its User’s failure to comply with this section.
Client agrees that any materials that it provides to RestApp, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information regarding RestApp or the Services, whether such materials are provided in email, feedback forms, or any other format, shall belong exclusively to RestApp, without any requirement to acknowledge or compensate Client.
10. Third Party Services
Client may decide to enable, access or use any Third Party Services (as defined below). Client agrees that access and use of such Third Party Services shall be governed solely by the terms and conditions of such Third Party Services, and that RestApp is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle data (including Client’s data) or any interaction between Client and the provider of such Third Party Services, regardless of whether or not such Third Party Services are provided by a third party that is a member of a RestApp partner program or otherwise designated by RestApp as “certified”, or “approved” by RestApp. Any use by Client of Third Party Services shall be solely between Client and the applicable third party provider. Client irrevocably waives any claim against RestApp with respect to such Third Party Services. RestApp is not liable for any damage or loss caused or alleged to be caused by or in connection with Client’s enablement, access or use of any such Third Party Services, or Client’s reliance on the privacy practices, data security processes or other policies of such Third Party Services. RestApp shall sign a Data Processor Agreement with applicable Parties where required to do so by law. “Third Party Services” means third party products, applications, services, software, networks, systems, directories, websites, databases and information which one or more Services link to, or which Client may connect to or enable in conjunction with one or more Services.
11. Maintenance Activities
It may be necessary for RestApp to perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the Product, which may temporarily degrade the quality of the services or result in a partial or complete outage of the Product. RestApp will endeavor to carry out such repairs or maintenance during times that will cause the least disruptions to Client’s business. Client shall cooperate, if necessary, to perform maintenance or repair work.
12. Terminations and Suspensions
12.1 Termination (for Breach). In the event of a material breach of these Conditions by either party, the non-breaching party may terminate these Conditions by giving the breaching party written notice specifying the nature of the breach in reasonable detail and the non-breaching party’s intention to terminate (a “Termination Notice“). If the breach has not been cured within the period ending thirty (30) days following delivery of the Termination Notice, then these Conditions shall automatically terminate. Notwithstanding the foregoing, if Client is in breach of any material provisions of these Conditions, including the license restrictions of Section 3, the payment terms of Section 5, or the confidentiality restrictions of Section 6, then RestApp may immediately suspend or terminate Client’s use of the Services. Any such suspension shall not relieve Client of any of its obligations under these Conditions or entitle Client to any refund of payments previously made.
12.2 RestApp may suspend Client’s access to the Services immediately without notice if RestApp, in its sole discretion, believes: (1) such suspension is required by law; (2) Client has breached these Conditions; or (3) there is a security or privacy risk to Client. Any suspension of Client’s access to the Services will not limit or waive RestApp’s rights to terminate these Conditions or Client’s access to the Services.
12.3 Effect of Termination. Upon termination of these Conditions, Client shall discontinue its use of the Service(s). Notwithstanding the foregoing, termination of these Conditions by RestApp shall not limit Client’s obligation to pay all of the applicable fees, nor restrict RestApp from pursuing any other remedies available to it, including injunctive relief. Sections 3, 5, 6, 7, 9-14, and 16-20 shall survive termination of these Conditions, along with any other provisions that are intended by their terms to survive.
12.4 Client Data. Client understands and agrees that RestApp has no control over the content of the data processed by RestApp on Client’s behalf. Client is responsible for taking its own steps to maintain appropriate security, protection and back-up of its data and software, including the use of appropriate back-up and archiving. Client remains responsible for properly handling and processing notices regarding personal data Client’s clients. Client understands and agrees that RestApp is not responsible for any loss or corruption of Client data or other software. Client agrees that following termination of Client’s account and/or use of the Product, RestApp may immediately deactivate Client’s account and delete Client data. Client further agrees that RestApp shall not be liable to Client nor to any third party for any termination of Client access to the Product or deletion of Client data.
13. Limitation of Liability
RestApp and its affiliates’ aggregate liability under these conditions shall be limited to the fees paid by customer during the three month period immediately preceding the date the claim giving rise to such liability was first asserted. Except with respect to (a) any willful or deliberate infringement or misappropriation by customer of any of RestApp’s, its affilitiates’ or suppliers’ intellectual property rights, and (b) customer’s indemnification obligations under these conditions, to the maximum extent permitted by law, neither party shall be liable for any indirect, incidental, consequential, special, reliance or punitive damages or lost or imputed profits or royalties, lost data or cost of procurement of substitute goods or services, whether for breach of contract, warranty, tort, statutory remedy or any obligation arising therefrom or otherwise and irrespective of whether either party has advised or been advised of the possibility of any such loss or damage. Customer hereby waives any claim that these exclusions deprive it of an adequate remedy. The parties acknowledge that the provisions of this section fairly allocate the risks under these conditions as between them. The parties acknowledge that the limitations set forth in this section are integral to the amount of fees charged in connection with making the products available to customer and that, were RestApp to assume further liability other than as set for herein, such fees would of necessity be set significantly higher.
14. Disclaimer of Warranties
Customer acknowledges that (a) RestApp can’t guarantee the results generated through the products, or that the products will be continuously available for use without interruption, and (b) the products are provided “as- is”, on an “as available” basis without any represention, warranty or condition of any kind, and RestApp hereby disclaims all conditions, representations and all warranties whether express or implied, arising by law or otherwise with respect to the products, including, but not limited to, any (i) implied warranty of merchantability or fitness for a particular purpose, (ii) implied warranty arising from course of performance, course of dealing, or usage of trade, (iii) warranty of title or non-infringement; or (iv) statutory remedy.
15. Assignment and Contractors
Client may not assign any of its rights or obligations under these Conditions without RestApp’s prior written consent. RestApp may, without Client’s prior consent, assign its rights and obligations under these Conditions. Subject to the foregoing, the provisions of these Conditions shall be binding on and inure to the benefit not only of the parties hereto but also to their successors and assigns. RestApp shall be free to perform all or any part of these Conditions through one or more subcontractors.
Client has reviewed, understood and accepted the terms and conditions set forth in these Conditions and has either consulted with legal counsel prior to executing these Conditions or has knowingly forgone its right to consult with legal counsel prior to such execution.
RestApp may provide any and all notices, statements and other communications to Client through either e-mail, posting on its site, or by mail or express delivery service.
The provisions of these Conditions shall not be construed against either party by virtue of their authorship.
The parties acknowledge that they require that these Conditions be drawn up in the English language, that the English language version prevails and that any translation is for information purposes only.
17. Governing Law, Venue and Attorneys’ Fees
These Conditions shall be governed by and construed in accordance with the law of England and Wales and the Seller and the Buyer irrevocably agree that the courts of England and Wales have exclusive jurisdiction in respect of any dispute, suit, action, arbitration or proceedings which arises out of, or in connection with an Agreement.
18. Severability, Force Majeure, Entire Agreement, Amendment
If one or more of the provisions of these Conditions is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, then the validity, legality and enforceability of the remaining provisions of these Conditions shall be unaffected. Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under these Conditions (other than payment obligations) by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials or supplies, failure of transportation or communication or of suppliers of goods or services, or any other cause to the extent it is beyond the reasonable control of such party. These Conditions constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto. RestApp may amend these Conditions at any time upon notice. Any terms or conditions appearing on the face or reverse side of any purchase order, acknowledgment, or confirmation that are different from or in addition to those set forth in these Conditions shall not be binding on the parties, even if signed and returned, unless expressly stated that such other terms and conditions take precedence over conflicting terms of this agreement (Conditions).
19. Provisions Applicable to Specific RestApp Products
19.1 RestApp EPOS
19.1.1 The RestApp EPOS Product may be utilized by additional, specifically-identifiable devices accessing such Product (“Users”) as specified in the Subscription. Client shall be responsible for managing User access to Products.
19.1.2 License to Client. The RestApp EPOS Product is licensed on a per copy per device basis. Client may install one copy of the RestApp EPOS Product on one device. That device is the “licensed device.” Client may only use one copy of the software on the licensed device at a time. Client may not transfer the RestApp EPOS Product to a third party.
19.2 RestApp Mobile POS
19.2.1 The RestApp Mobile POS Product may be utilized by additional employees/users on a concurrent-user basis (“Users”) as specified in the Subscription. Client shall authorize access to and assign unique passwords and user names to the number of Users procured by Client on the Subscription. User logins are for designated Users and cannot be shared by more than one User but any User login may be reassigned to another User as needed. Client will be responsible for the confidentiality and use of User’s passwords and user names.
19.2.2 License from Client. Client hereby grants RestApp a royalty-free, limited, non-exclusive right, authorization and license to use the name, logos, trademarks, copyrights and related intellectual property of Client, its Users, or its licensors, solely as necessary to fulfill the purposes contemplated in these Conditions.
19.3 RestApp Online Ordering
19.3.1 The RestApp Online Ordering product (“Online Ordering”) may be utilized by additional users (“Users”).
19.3.2 License from Client. Client hereby grants RestApp a royalty-free, limited, non-exclusive right, authorization and license to use the name, logos, trademarks, copyrights and related intellectual property of Client, its Users, or its licensors, solely as necessary to fulfill the purposes contemplated in these Conditions.
19.3.4 Client’s Site and Apps. Client will retain ownership of the URL and/or domain name applicable to any website utilized by Client in connection with RestApp’s Online Ordering product (“Client’s Site and Apps“).
19.3.5 Client’s Representations and Warranties. Client represents and warrants that currently and throughout the Term, Client and any Users are fully authorized to publish, and authorize RestApp to publish, without the necessity of obtaining any further permissions from or payments to any third party, all of the materials provided for publication on Client’s Site and Apps, including without limitation, text, logos, photos and other graphics.
19.4.1 If Client agrees to purchase point-of-sale equipment and supplies (“Hardware”), Client shall pay the purchase price set forth in the Subscription, including shipping/handling fees, duties, brokerage fees, and any applicable sales, use, harmonized, valued-added or similar taxes. Hardware will be shipped to Client upon due receipt of payment. All sales of Hardware are final. Client must verify no later than five (5) business days from receipt of Hardware that shipment was accurate and complete, failing which the Product warranty under this section 20.4 will be inapplicable.
19.4.2 Limited Warranty. In addition to any applicable manufacturer’s warranty, RestApp warrants to Client that new Hardware will be free from defects in workmanship and materials for thirty (30) days from the date that Hardware was shipped to Client as original end-user (“Warranty Period”). This Limited Warranty is not transferable. During the Warranty Period, RestApp may, at its sole option, repair or replace Hardware without charge for either labor or parts. Hardware must be returned in good condition in the original packaging and include all related components. Client shall bear all costs in case of damaged Hardware and/or missing components. Charges for returning Hardware shall be for Client’s account. A restocking fee may also apply.
Following expiration of the Warranty Period, Client must contact manufacturer for any repairs or replacement and adhere to manufacturer’s merchandise return procedures. The manufacturer’s warranty and contact information are included with Hardware.
RestApp’s Limited Warranty does not apply: (i) to normal wear and tear; (ii) if the Hardware is opened, tampered with or repaired by someone not authorized by RestApp; (iii) to any damage attributable to misuse, moisture or liquids, accident, abuse, neglect or misapplication; (iv) to physical damage to the surface of Hardware, such as scratches, dents or other cosmetic changes; or (v) if used with products or services not provided or licensed by RestApp.
19.4.3 Installation Fees Applicable. Where a Client, based in the United Kingdom, requests on-site installations to be conducted by a RestApp employee or agent, Client agrees to pay travel fees representing £0.50 per kilometer and an hourly rate of £100 for hours exceeding the original estimate provided by RestApp.
19.4.4 Exclusive Remedy. Repair or replacement are the exclusive remedy provided in conjunction with the purchase by customer of the hardware. RestApp, on behalf of itself, its affiliates, resellers and distributors, hereby disclaims all other warranties, conditions, representations or guarantees of any kind, either express or implied, including but not limited to implied warranties of merchantability, satisfactory quality and/or fitness for purpose.
20. Client’s Site and Apps
20.1 Client agrees to give full access to their marketing, branding and menu assets to be used by RestApp.
20.2 The Intellectual Property, Technology, Code and Functionality of the Service (not including the Client’s website domain name) shall at all times remain the property of RestApp.
20.3 Client agrees that RestApp may represent, create or sign up Client on social media, business listing services and search engines to market and promote Client’s Site and Apps. RestApp can’t be held accountable to maintain these services, social media account or any other web property that we have signed up for or claimed. RestApp won’t be responsible for any loss to business that comes from comments, reviews or miss management of these services. RestApp will give Client full rights to access these services if the services allow for such functionality.